EXHIBIT 4.8
SHARE SALES AGREEMENT
ENTERED AND SIGNED IN TEL AVIV ON THE 27TH OF THE MONTH OF MARCH, 2008
BETWEEN: BENTAL INVESTMENTS COOPERATIVE AGRICULTURAL SOCIETY LTD.
Cooperative Society No. 570043372
Kibbutz Marom Golan
(Hereinafter: "BENTAL" or "THE SELLER")
ON THE ONE PART;
AND: TAT TECHNOLOGIES LTD.
Public Company No. 520035791
P.O. Box 80, Gedera 70750
(Hereinafter: "TAT" or "THE BUYER")
ON THE SECOND PART;
WHEREAS the Seller is the owner and holder of 14,998 regular shares of
NIS 1 par value each in Betnal Industries Ltd. (hereinafter: "THE
COMPANY"), which as of the date of signing this agreement,
constitute approx. 75% of the Company's issued and paid share
capital (hereinafter: "SELLER'S SHARES");
AND WHEREAS the Seller is interested in selling 5,400 out of the Seller's
Shares to the Buyer, constituting 27% of the Company's issued
share capital (hereinafter: "SALE SHARES") and the Buyer in
interested in purchasing all the Sale Shares from the Seller,
being clean and free (as defined below), all according to the
manner and terms specified in this Agreement below; AND WHEREAS
the Seller and Buyer are interested in giving one another a put
option and call option referring to option shares (as defined
below);
AND WHEREAS until the date of closing as defined bellow, the Buyer is
expected to sign and complete the execution of an agreement
between the Buyer and Mivtach Shamir Holdings Ltd. (hereinafter:
"MIVTACH") for the sale of 2,000 regular shares of NIS 1 par
value each in the Company, held by Mivtach and constituting 100%
of Mivtach's holdings in the Company and 10% of the Company's
issued share capital (hereinafter: "MIVTACH TRANSACTION");
NOW THEREFORE IT IS DECLARED, STIPULATED AND AGREED BETWEEN THE PARTIES AS
FOLLOWS:
1. PREAMBLE AND INTERPRETATION
The preamble and to this Agreement, appendixes and parties' statements,
constitute an integral part thereof.
The headings of the clauses in this Agreement were added purely for reading
convenience and should not be used for interpreting the Agreement.
2. DEFINITIONS
In this Agreement, the following terms will be given the meanings that
appear beside them:
2.1 "CALL OPTION" - As defined in clause 7 below.
2.2 "PUT OPTION" - As defined in clause 8 below.
2.3 "DOLLAR" - One United States Dollar.
2.4 "COMPANY'S ISSUED AND PAID SHARE CAPITAL" - 20,000 regular shares
included in the Company's issued and paid capital on the date of
signing this Agreement.
2.5 "SUBSIDIARY" - Bental Inc., company incorporated according to the laws
of the State of Maryland, U.S.A, whose entire shares are owned by the
Company. In this Agreement, the term "Company" includes the
Subsidiary.
2.6 "COMPANIES LAW" - Companies Law, 5759-1999.
2.7 "BUSINESS DAY" - Sundays - Thursdays every week, provided that there
is no holiday, occasion, holiday eve and/or Sabbatical.
2.8 "CLOSING DATE" - 7 (seven) business days after fulfilling the finale
suspending condition or any other date after fulfilling the suspending
conditions to be agreed in writing by the parties.
2.9 "MEMORANDUM OF UNDERSTANDING" - The Memorandum of Understanding signed
between the parties, together with Mivtach on January 2, 2008.
2.10 "COMMISSIONER" - Israel Antitrust Commissioner by virtue of the
provisions of the Restrictive Trade Practices Act, 5748-1988.
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2.11 "REGULAR SHARES" - Regular shares of NIS 1 par value each of the
Company's issued and paid share capital.
2.12 "SALE SHARES" - 5,400 regular shares held by the Seller on the date of
signing this Agreement and constituting 27% of the Company's issued
and paid share capital on such date.
2.13 "OPTION SHARES" - 3,598 regular shares of the Company held by the
Seller on the date of signing this Agreement and constituting 18% of
the Company's issued and paid share capital on such date, for which
the put option and call option will be granted.
2.14 "COMPANY'S FOUNDATION DOCUMENTS" - The Company's Memorandum and
Articles of Association as of the date of signing this Agreement are
attached as APPENDIX 2.14 of this Agreement.
2.15 "CLEAN AND FREE" - Clean and free of any mortgage, pledge, attachment,
lien, right of first refusal, right to tag along, obstruction
settlements, debt or any third party rights.
2.16 "EXIT TRANSACTION" - Means each one of the following: (a) sale of the
Company's control to a third party; (b) sale of all or most of the
Company's assets to a third party; (c) merger of the Company with
another company, provided that the Company is not the surviving
company. Notwithstanding the aforesaid, for purpose of this sub-clause
(c), a merger will not be perceived as an Exit transaction if on the
eve of the merger, the Company shareholders will hold over 90% of the
shares in the absorbing company, in the same relation of holdings
among them that existed in the Company on the eve of the merger.
For purpose of this sub-clause 2.16 the term "THIRD PARTY" means
someone other than: the Company shareholders or a person who controls
any of the shareholders, a corporation controlled by the shareholders
or any corporation controlled by any of them.
2.17 "OWNERS' GUARANTEE" - Guarantees submitted by Kibbutz Maron Golan to
ensure the Company's obligations toward third parties according to the
list attached as APPENDIX 2.17 of this Agreement.
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2.18 "INTEREST" - Interest at an annual rate of 2% on Dollar amounts to be
added and apply, INTER ALIA, to the price of exercising the put option
and the price of exercising the call option.
2.19 "ARREARS INTEREST" - Arrears interest to be paid according to the
provisions of clause 20 of this Agreement.
2.20 "REPRESENTATIVE RATE" - The latest representative rate of the US
Dollar per NIS 1, published by the Bank of Israel before the date of
performing an actual payment according to this Agreement.
2.21 "SUSPENDING CONDITIONS" - The conditions stipulated in clause 12 of
this Agreement.
3. THE SELLER'S PRESENTATIONS, STATEMENTS AND UNDERTAKINGS
3.1 The Seller hereby presents, states and undertakes the following to the
Buyer, regarding the Sale Shares:
3.1.1 The Seller is the exclusive owner and holder of the Sale Shares
and Option Shares.
3.1.2 That the Sale Shares and Option Shares were duly issued and
fully paid, and subject to the fulfillment of the suspending
conditions, on the date of signing this Agreement are and will be
on the closing date or the date of exercising the call option or
put option, if at all, as applicable, clean and free for
transfer, according to the provisions of this Agreement.
3.1.3 Not to undermine from the generality of the said in clause 3.1.2
above, subject to fulfilling the suspending conditions, the
Seller did not undertake towards any third party to transfer the
Sale Shares and Option Shares, or any part thereof, or avoid
transferring them and did not grant or give any person or body
any option or other right to purchase or receive the shares in
the Company (including Sale Shares and Option Shares) and/or any
part thereof and that no person or body has the right of first
refusal, right to tag along or any other right regarding the
Company's shares (including Sale Shares and Option Shares), all
or part thereof, except by virtue of the Company's Founders
Agreement.
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3.1.4 Subject to fulfilling the suspending conditions: (a) sale of the
Sale Shares to the Buyer and granting the put option and call
option according to this Agreement, is not contrary or
contradicts any contract and/or undertaking by any party thereto;
(b) the Seller received all the authorizations and certificates
required by the law for the sale of the Sale Shares, transfer
thereof and granting the put option and call option to the Buyer,
and there is not prohibition or limitation or prevention of any
sort, from executing the aforesaid.
3.1.5 The Seller made all the decisions according to its certificates
of incorporation and the law, required for engaging in this
Agreement and executing its obligations according thereto and
that the signatories onto this Agreement in its behalf, were duly
authorized to do so and their signature binds the Seller and
subject to fulfilling the suspending conditions, the Seller's
engagement in this Agreement and executing the provisions
thereof, do not require any consent, certificate or permission
from any person or body or giving any notice, and to the best of
the Seller's knowledge there is no prevention from its engagement
in this Agreement and fulfilling its obligations according
thereto.
3.1.6 Except as specified in APPENDIX 3.1.6 to this Agreement, the
Seller is not a party to any transaction and/or engagement with
the Company and there is no material transaction and/or
engagement in which the Seller and/or other interested parties in
the Company, have any personal interest.
3.1.7 To the best of the Seller's knowledge, the Company's financial
statements were prepared based on all the material information
required for preparation thereof and that to the best of the
Seller's information, no material information as said was
concealed or omitted from the Company's financial statements.
3.1.8 As part of the due diligence conducted by the Buyer, the Company
submitted all the information and documents requested by the
Buyer to the Buyer or its representatives and no misleading
information or documents regarding acquisition of Company shares,
was submitted to the Buyer.
3.1.9 Upon signing this Agreement, the Seller agrees to waive the
right of first refusal concerning the Mivtach transaction.
3.2 The Seller's presentations specified in this clause 3, will remain
true for the closing date. Not to undermine from the said, if any
change applies on the Seller's presentations as said in this clause 3
until the closing date, the Seller will give the Buyer written notice
of the matter and the Buyer will be entitled to terminate this
Agreement, without bearing any liability towards the Seller for the
termination as said.
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The parties hereby stipulate that for purpose of deciding whether
certain information was known to the Seller as said in clause 3 above,
"information" known to whomever served as a director in the Company on
behalf of the Seller on the date of signing this Agreement will be
attributed to the Seller (meaning: Messieurs Shaul Gor, Shafi Mor,
Gabbi Kuniel and Elisha Yalin)
4. THE BUYER'S STATEMENTS AND UNDERTAKINGS
The Buyer hereby presents, states and undertakes the following to the
Seller:
4.1 The Buyer is a public company duly incorporated and registered in
Israel on April 7, 1985, controlled by TAT Industries Ltd., holding
3,002 of the Company's regular shares, which as of the date of signing
this Agreement, constitute approx. 15% of the Company's issued and
paid capital.
4.2 The Buyer conducted due diligence of the Company and its activity and
to the best of its knowledge and according to the Seller's
presentations; the Buyer has received all details, information and
explanations regarding the Company and its activity and found the
Company, Sale Shares and Option Shares, satisfactory.
4.3 The Buyer is engaging in this Agreement after considering the
advisability of the transaction, as a reasonable investor.
4.4 Subject to the correctness of the Seller's statements in clause 3
above and fulfilling its obligations according to this Agreement, the
Buyer is purchasing the Sale Shares without the Seller making any
presentation beyond the said in this Agreement, regarding the
Company's business condition or assets. According to the said and
subject to the correctness of the presentations in clause 3 above, the
Buyer has no and will not have any claims or arguments towards the
Seller, including claims of alternative and/or compatibility and/or
defect of any sort regarding the purchase of the Sale Shares,
exercising the call or put option and/or the Company and anything
associated or resulting thereby.
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4.5 The Buyer: (a) is fully authorized to engage in this Agreement and
perform all its obligations according thereto; and (b) has no legal
prevention or other prevention from engaging in this Agreement and (c)
does not require the confirmation or consent of any third party,
regarding signing this Agreement or executing the provisions thereof,
except the certificates and approvals forming suspending conditions
for validation of this Agreement.
4.6 The Buyer has the economic and financial abilities required to perform
its obligations according to the provisions of this Agreement.
4.7 The Buyer's presentations specified in this clause 4, will remain true
on the closing date.
5. THE TRANSACTION
5.1 Subject to fulfilling the suspending conditions, the Seller undertakes
to sell the Sale Shares to the Buyer and the Buyer undertakes to
purchase the Sale Shares from the Seller, on the closing date, being
clear and free. In addition, the Seller undertakes to grant the Buyer
a call option and the Buyer undertakes to grant the Seller a put
option, all as specified below.
5.2 Sale of the Sale Shares and transfer thereof to ownership of the Buyer
on the closing date will be done in exchange for consideration as
specified in clause 6 below.
6. CONSIDERATION FOR THE SALE SHARES AND TERMS OF PAYMENT
The Buyer will pay the Seller for the Sale Shares on the closing date, the cash
amount of USD 3,375,000 (three million, three hundred and seventy five thousand)
US Dollars (hereinafter: "CONSIDERATION FOR THE SALE SHARES") in exchange for
transfer of the Sale Shares to the name of the Buyer, being clean and free.
Payment of the Consideration for the Sale Shares will be done subject to
"ADJUSTMENT TO THE EXCHANGE RATE OF THE DOLLAR" according to the provisions of
clause 17 below.
7. CALL OPTION
7.1 The Seller hereby grants the Buyer the call option to purchase all the
Options Shares from the Seller in 4 portions maximum (hereinafter:
"CALL OPTION").
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7.2 The Call Option will be in effect as of January 1, 2009 and will
remain valid for 4 years until December 30, 2012 (hereinafter: "CALL
OPTION PERIOD").
7.3 The Call Option will be exercisable by the Buyer during the entire
Call Option Period in a number of portions, provided that each portion
includes exercising at least 25% of the total Option Shares.
Exercising a Call Option or part thereof, will be done by delivering a
written exercising notice to the Seller, unreserved and unconditioned,
referring to the quantity of Option Shares that the Buyer wishes to
purchase (hereinafter: "EXERCISING NOTICE").
7.4 Subject to clause 9.2 below, the exercising price including the Call
Option is USD 2,250,000 (two million, two hundred and fifty thousand)
US Dollars with the addition of interest (as defined in this
Agreement), applicable from the closing date until the actual date of
payment for each portion (hereinafter: "PRICE OF EXERCISING THE CALL
OPTION"). Subject to adjustments due to changes in share capital and
similar events as said in clause 9.3 below, the Price of Exercising
the Call Option for each Option Share will be USD 625.35 (six hundred
and twenty five US Dollars and thirty five cents) with the addition of
interest from the closing date until the date of actual payment for
each portion (hereinafter: "PRICE OF EXERCISING THE CALL OPTION FOR
OPTION SHARES"). Payment of the Price of Exercising the Call Option
and Price of Exercising the Call Option for Option Shares, will be
subject to adjustments for dividend distribution according to clause
9.2 below and "ADJUSTMENT TO THE EXCHANGE RATE OF THE DOLLAR"
according to the provisions of clause 17 below.
8. PUT OPTION
8.1 The Buyer hereby grants the Seller the put option, entitling the
Seller to obligate the Buyer to purchase all the Options Shares from
the Seller in two portions maximum (hereinafter: "PUT OPTION").
8.2 The Put Option will be in effect as of January 1, 2011 and will remain
valid for two years until December 30, 2012 (hereinafter: "PUT OPTION
PERIOD").
8.3 The Put Option will be exercisable by the Seller during the entire Put
Option Period in a number of portions, provided that each portion
includes exercising at least 50% of the total Option Shares.
Exercising a Put Option or part thereof, will be done by delivering a
written exercising notice to the Buyer, unreserved and unconditioned,
referring to the quantity of Option Shares that the Seller wishes to
obligate the Buyer to purchase (hereinafter: "EXERCISING NOTICE").
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8.4 Subject to clause 9.2 below, the exercising price including the Put
Option is USD 2,137,000 (two million, one hundred and thirty seven
thousand) US Dollars with the addition of interest (as defined in this
Agreement), applicable from the closing date until the actual date of
payment for each portion (hereinafter: "PRICE OF EXERCISING THE PUT
OPTION"). Subject to adjustments due to changes in share capital and
similar events as said in clause 9.3 below, the Price of Exercising
the Put Option for each Option Share will be USD 594.08 (five hundred
and ninety four US Dollars and eight cents) with the addition of
interest from the closing date until the date of actual payment for
each portion (hereinafter: "PRICE OF EXERCISING THE PUT OPTION FOR
OPTION SHARES"). Payment of the Price of Exercising the Put Option and
Price of Exercising the Put Option for Option Shares, will be subject
to adjustments for dividend distribution according to clause 9.2 below
and "ADJUSTMENT TO THE EXCHANGE RATE OF THE DOLLAR" according to the
provisions of clause 17 below.
9. ADDITIONAL PROVISIONS REGARDING THE PUT AND CALL OPTION
9.1 If an Exercising Notice was submitted for Call Option or Put Option or
part thereof, on dates determined for such purpose, then within 30
(thirty) days from the date of delivering the Exercising Notice
(hereinafter: "EXECUTION DATE"), the parties will meet at 10:00 in the
morning at the offices of Advocate Yigal Arnon & Co., at Azrieli
Center 1, Tel Aviv, 46th floor, or other date and location as agreed
between the parties and on such date the following acts will be
performed simultaneously, and considered as done at the same time and
none of them will be considered valid unless all the other acts are
performed; following are the acts:
9.1.1 The Buyer will pay the Seller the total required Price for
Exercising, calculated by multiplying the quantity of Option
Shares exercised times the Price for Exercising the Call Option
or Price for Exercising the Call Option, as applicable. The Price
for Exercising as said, will be paid by bank draft or bank
transfer to the bank account instructed in advance, in writing by
the Seller; and
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9.1.2 The Seller will sell and transfer the Option Shares or part
thereof to the name of the Buyer, being clean and free, in
exchange for payment of the Price for Exercising or part thereof,
according to the quantity of Option Shares exercised; and
9.1.3 The Company secretary will submit the following to the Buyer (a)
written confirmation from the Company that the Buyer was
registered in the Company's book of shareholders as the owner of
the conveyed share; and (b) report of share transfer duly signed
and confirmed, bearing the stamp of the Registrar of Companies.
9.2 ADJUSTMENT TO DIVIDEND DISTRIBUTION - If the Company will distribute
dividends before exercising the Put Option or Call Option in full, the
amount equaling the amount of dividend, before tax, distributed for
all the Option Shares (hereinafter: "ADJUSTED EXERCISING PRICE"), will
be deducted from the Price for Exercising the Call Option for the
Option Shares or the Price for Exercising the Put Option for the
Option Shares, as applicable (hereinafter in this clause: "EXERCISING
PRICE"). The amount of dividend as said will be calculated according
to its Dollar value on the day of distributing the dividend (exchanged
according to the representative rate known on the date of the dividend
distribution) (hereinafter: "DOLLAR AMOUNT OF DIVIDEND"). Just for the
record, it is clarified that the Adjusted Exercising Price will be
calculated by deducting the Dollar amount of Dividend from the
Exercising Price with the addition of interest accrued from the
closing date until the date of dividend distribution. From the date of
the dividend distribution until the actual date of paying the
Exercising Price, only the Adjusted Price will bear interest.
9.3 If there will be capital consolidation or capital splitting and if
bonus shares will be divided in regard to Option Shares (hereinafter:
"REORGANIZATION OF THE COMPANY'S CAPITAL"), the Call Option and Put
Option, as applicable, will apply to all the Option Shares and all the
shares generated thereby as a result of the Reorganization of the
Company's Capital, without any change in the total Exercising Price
for the Option Shares. If the Seller exercises its preemptive right in
allocation of shares for the Option Shares, then the Call Option and
Pull Option will also apply to shares allocated to the Seller for
exercising such right (hereinafter: "ADDITIONAL EXERCISING RIGHTS")
and the Buyer will pay the Seller the Dollar amount that the Seller
paid for allocation thereof (calculated according to the
representative rate) for the Additional Exercising Rights, on the date
of exercising with the addition of interest from the date of
allocation until the actual date of payment of their price.
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9.4 ACCELERATING THE PERIOD FOR EXERCISING OPTIONS FOR EXIT TRANSACTIONS -
if there will be an Exit transaction, before the end of the Call
Option Period or Put Option Period as applicable, the periods of the
Call Option Period or Put Option Period will be accelerated in a
manner that the Buyer and Seller will be entitled to exercise the Call
Option or the Put Option as applicable, by written notice on the eve
of completing the Exit transaction, subject to completion thereof.
10. ADDITIONAL CONSIDERATION FOR EXIT TRANSACTIONS
It is agreed that if the Company will perform an Exit transaction during
the period between the closing date and the end of three years from the
closing date, then on the date of closing the Exit transaction as said, the
Buyer will pay the Seller additional consideration to be calculated as
follows:
10.1 For each share of the Sale Shares, the Buyer will pay the Seller a
certain amount to be calculated as a percent, as specified in the
table below, from the amount of difference between the price of share
as said in US Dollar generated from the Company's value in the Exit
transaction and the price of the share to be paid for each share of
the Sale Shares according to this Agreement with the addition of
interest that applies from the closing date until the date of the Exit
transaction (hereinafter: "DIFFERENCE IN SALE PRICE").
10.2 For each share of the Option Shares, provided that until the date of
closing the Exit transaction, Exercising Notice was granted for such
shares as part of the Put Option or Call Option, the Buyer will pay
the Seller a certain amount to be calculated as a percent, as
specified in the table below, from the difference between the price of
share from the Option Shares in US Dollar generated from the Company's
value in the Exit transaction and the Price of Exercising the Call
Option for the Option Shares or the Price of Exercising the Put Option
for the Option Shares for each share from the Option Shares (i)
according to the type of option exercised for such share; (ii)
calculated until the date of exercising the Exit transaction; and
(iii) subject to "ADJUSTMENT TO THE EXCHANGE RATE OF THE DOLLAR"
(according to the provisions of clause 17 below) (hereinafter:
"DIFFERENCE IN THE PRICE OF THE Option").
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For the avoidance of doubt, it is clarified that the Difference in the
Price of the Option will be calculated only for the Option Shares
actually exercised before the closing of the Exit transaction as part
of the Put Option and/or the Call Option, and in case of partial
exercising of Put Option and the Call Option together, then the
Difference in the Price of the Option will be calculated according to
the quantity of shares exercised as part of any option as said.
DATE OF CLOSING THE EXIT TRANSACTION ADDITIONAL CONSIDERATION FOR SALE ADDITIONAL CONSIDERATION FOR OPTION
SHARES SHARES
- ---------------------------------------- -------------------------------------- --------------------------------------
During the first year after the date Amount equaling 30% of the Amount equaling 30% of the
of closing difference from the sale price difference from the option price
- ---------------------------------------- -------------------------------------- --------------------------------------
During the second year after the date Amount equaling 20% of the Amount equaling 20% of the
of closing difference from the sale price difference from the option price
- ---------------------------------------- -------------------------------------- --------------------------------------
During the third year after the date Amount equaling 10% of the Amount equaling 10% of the
of closing difference from the sale price difference from the option price
- ---------------------------------------- -------------------------------------- --------------------------------------
11. RELEASE FROM OWNERS' GUARANTEE
Concurrently with completing the transaction on the closing date (and
subject to completing the transaction), the Buyer will exercise maximal
efforts to ensure that all owners' guarantees, as specified in Appendix
2.17 are released, so that after the closing date, the Kibbutz will not be
a guarantor for the Company's debts. If so required, the Buyer will submit
guarantees or other securities to the satisfaction of the guarantee
recipients, as a substitute for the said guarantees (hereinafter: "RELEASE
FROM OWNERS' GUARANTEES"). Until the Release from Owners' Guarantees as
said, the Buyer undertakes to indemnify the Seller for any payment paid by
the Seller for realizing the owners' guarantees. Not to undermine from the
aforesaid, the Buyer will ensure that the Seller is released from the
owners' guarantee not later than the end of 3 months from the closing date.
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12. SUSPENDING CONDITIONS: INTERIM PERIOD
12.1 This Agreement and fulfillment thereof, are conditioned by fulfilling
and executing the suspending conditions specified below prior to the
closing date:
12.1.1 The Commissioner approved the transaction discussed in this
Agreement, including, if necessary, exercising the Call and Put
Option ("Merger of companies" as defined in the Restrictive Trade
Practices Act, 5748-1988). The parties will act in good faith,
diligently and assiduously to fulfill and perform the terms as
said, as soon as possible.
12.1.2 The chief scientist approved the transaction for changing
control in the Company as a result of transferring shares
according to this Agreement.
12.1.3 The investment center approved the transaction for changing
control in the Company as a result of transferring shares
according to this Agreement.
12.1.4 The banks, with whom the Company is engaged, have approved the
change in control of the Company.
12.1.5 The Mivtach transaction was concluded concurrently with the
completion of the transaction discussed in this Agreement on the
closing date and Mivtach has agreed to waive the right of first
refusal referring to the transactions discussed in this
Agreement.
12.1.6 No legal procedure was initiated before an authorized legal
instance, concerning a claim or argument, or thereat or anything
similar, regarding the parties' engagement in this Agreement or
the Buyer's rights as said therein, which remains pending on the
closing date.
12.1.7 The Seller's presentations are true, complete and accurate on
the closing date.
12.1.8 All the additional terms specified in clause 13.1 below were
fulfilled.
12.2 If and as long as the suspending conditions were not fulfilled within
120 days from the date of signing this Agreement (hereinafter:
"INTERIM PERIOD"), after the parties exercised reasonable efforts in
order to fulfill such conditions, and the party to benefit from the
suspending conditions did not agree to waive fulfilling such
condition, then each party will be entitled to terminate this
Agreement and in such case, no party will be entitled to any right or
cause of action according to the Agreement.
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12.3 During the Interim Period, the Seller will exercise all measures
available according to the law in order to assure that the Company
continues to conduct its businesses in the regular course of business,
within the Company's approved work plan and budget, subject to
deviations resulting from the regular course of business, all subject
to the law. Not to undermine from the generality of the said, subject
to the law, the Seller will exercise all measures at its disposal in
order to prevent application and performance of the following in the
Company or subsidiary thereof (except acts required for closing the
subsidiary): (a) any change in the regular course of business or the
terms for employment of employees thereof; (b) any profit
distribution, any monetary payment in any other manner, such as
management fees, bonuses etc, any loans, securities or guarantees of
any sort, except as said in this Agreement; (c) any organizational
change, including splitting, transferring or selling rights,
purchasing the activity or holdings in another person, merger etc.;
(d) change in ownership and/or holdings, and any endowment or
allocation of capital rights; (e) any appointment or replacement of
senior officers and any transaction or engagement between them and the
Seller and/or related or associated parties thereto; (f) any change in
the terms and conditions of any the Company's material agreements; and
(g) any agreement or obligations to perform any of the abovementioned.
13. CLOSING
13.1 On the date of closing and after obtaining all the approvals as said
in clause 12 above, the parties will meet at 10:00 in the morning at
the offices of Advocate Yigal Arnon & Co., at Azrieli Center 1, Tel
Aviv, 46th floor, or other date and location as agreed between the
parties and on such date: the Seller will sell the Sale Shares to the
Buyer and the Sale Shares will be transferred to the name of the
Buyer, being clean and free, concurrently and in exchange for: (1)
performing payment of the entire Consideration for the Sale Shares by
the Buyer; and (2) additional acts as specified below; and all the
following acts will be done simultaneously and considered as done at
the same time and none of them will be considered valid unless all the
other acts are performed; following are the acts:
13.1.1 The Buyer will pay the Seller the Consideration for the Sale
Shares by bank draft or bank transfer to the bank account
instructed by the Buyer in advance in writing; and
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13.1.2 The Seller will sign a share transfer certificate as the
transferor, in the version required according to the Company's
Articles of Association, referring to all the Sale Shares held by
the Seller;
13.1.3 The parties will sign a shareholders' agreement in the version
attached to this Agreement as Appendix 13.1.3; and
13.1.4 The Company's general assembly will approve replacement of the
Company's existing Articles of Association with the Articles of
Association according to the version attached to this Agreement
as Appendix 13.1.4.
13.1.5 The parties will sign any other document required for
validating the transaction for the sale of the Sale Shares.
14. ARBITRATION
14.1 In any case of disputes or differences of opinion between the parties
in any matter concerning, resulting or associated with entering the
Agreement, validity, breach, execution or interpretation of this
Agreement, such will be submitted for decision of a single arbitrator.
The arbitrator will be Yossi Abadi, Advocate and if he is refrained
from serving as an arbitrator, an arbitrator will be appointed by the
Buyer and Sellers' attorneys and in lack of agreement between them
after 14 days from the appeal from one party to the other, an
arbitrator will be appointed by the Israel Bar Association.
14.2 The arbitrator will be entitled to grant interlocutory orders and
other temporary remedies that a court of law is authorized to give and
will be linked and subject to the substantive law, but not laws of
evidence and legal procedures. The arbitrator will explain his
arbitration award.
14.3 The provisions of this clause will be valid as though they are an
arbitration agreement between the parties and the provisions of the
addition to the Arbitration Law, 5728-1968, will apply to the
arbitration procedures and the arbitrator.
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15. JURISDICTION
Subject to the said in clause 14 of the Agreement referring to the matter
of arbitration, the jurisdiction in all matters concerning this Agreement
or resulting from the Agreement, are awarded to the authorized courts of
Tel Aviv and only such courts.
16. GENERAL UNDERTAKING TO PERFORM ACTS AND SIGN DOCUMENTS
The parties undertake to perform all actions and sign all documents,
certificates, forms and statements, as required and beneficial for
performing the provisions of this Agreement. Not to undermine from the
generality of the aforesaid, the parties undertake to comply with all
reporting obligations required by the law (including to the Registrar of
Companies), as entailed in performing this Agreement.
17. ADJUSTMENT TO THE EXCHANGE RATE OF THE DOLLAR
The following payments will be done subject to adjustment to the exchange
rate of the US Dollar as specified below in this clause (hereinafter:
"ADJUSTMENT TO THE EXCHANGE RATE OF THE DOLLAR")
Following are the payments: (i) Payment of the Consideration for the Sale
Shares as said in clause 6 above; (ii) Payment of the Price for Exercising
the Call Option or Price of Exercising the Call Option for Option Shares,
as applicable according to clause 7 above; (iii) Payment of the Price for
Exercising the Put Option or Price of Exercising the Put Option for Option
Shares, as applicable according to clause 8 above; (EACH hereinafter:
"ADJUSTED PAYMENT" or together hereinafter: "ADJUSTED PAYMENTS"). On the
date of performing each one of the Adjusted Payments, the adjustment to the
exchange rate of the Dollar will be done as specified below:
17.1 If the representative rate on the date of performing any one of the
Adjusted Payments is less than NIS 3.70 per Dollar, the Buyer will pay
the Seller, in addition to the amount of Adjusted Payment, which
should be paid according to the said in the provisions of this
Agreement, an additional amount to be calculated according to the
following formula:
D * P
----------
X R
X - Means the additional amount that the Buyer must pay in US
Dollars
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D - Means the difference between the NIS 3.70 per Dollar and the
representative rate known on the date of the relevant Adjusted
Payment
P - Means the relevant Adjusted Payment (as defined above) in US
Dollars before the adjustment to the exchange rate of the Dollar
R - Means the representative rate known on the date of performing
the Adjusted Payment.
17.2 If the representative rate on the date of performing any of the
Adjusted Payments exceeds NIS 3.95 per Dollar, the amount to be
calculated according to the following formula will be deducted from
the amount of the Adjusted Payment that the Buyer must pay the Seller:
D * P
----------
X R
X - Means the amount that should be deducted from the Adjusted
Payment in US Dollars
D - Means the difference between representative rate known on the
date of the Adjusted Payment and NIS 3.95 per Dollar
P - Means the Adjusted Payment in US Dollars, before the adjustment
to the exchange rate of the Dollar
R - Means the representative rate known on the date of performing
the Adjusted Payment.
17.3 For the avoidance of doubt, if the representative rate of the Dollar
on the date of performing the relevant payment will be in the range
between NIS 3.70 and NIS 3.95, then there will be no adjustment
according to this clause and the payment will be performed according
to the representative rate known on such date.
18. GENERAL
18.1 Each payment that must be done according to the provisions of this
Agreement will be paid on a business day until 11:00 before noon. If
the date for payment is not a business day, the payment will be
delayed to the first business day after the date of payment.
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18.2 This Agreement, after signing thereof, exhausts all the agreements
between the parties referring to matters mentioned therein and negates
any prior agreement, presentation, drafts or understandings between
the parties or anyone on their behalf referring to matters included
therein, including the Memorandum Of Understanding, and such documents
will not be used in any way for interpretation, claims or any other
manner.
18.3 Any promise or statement of any sort, whether in writing or verbally
or by manner of conduct or omission, made prior to the date of signing
this Agreement, will be perceived as negated and this Agreement will
be perceived as including, reflecting and exhausting all the parties
statements and obligations regarding matters arranged in this
Agreement as said.
19. TAXES AND EXPENSES
19.1 Any tax or other levy, if and as such applies to the Seller or to a
seller of shares by virtue of the provisions of the law or signing
this Agreement of performing the provisions thereof, will be paid by
the Seller.
19.2 Any tax or other levy, if and as such applies to the Buyer or to a
buyer of shares by virtue of the provisions of the law or signing this
Agreement of performing the provisions thereof, will be paid by the
Buyer.
19.3 Any payment performed according to the provisions of this Agreement,
will be paid subject to the deduction of tax at source or against
presentation of exemption from deduction of tax at source.
19.4 Each party will bear its expenses, including fees for its legal
advisers concerning preparation and executing this Agreement.
19.5 Due V.A.T will be added to each payment for linkage differentials,
interest and arrears interest, if applicable, all in exchange for
submission of a tax invoice. Payment of the due V.A.T to apply as
said, if such applies, for any payment, will be performed by
submitting a postdated cheque to be paid on the 15th of the subsequent
month of the said payment.
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20. ARREARS INTEREST
If any party did not pay an amount that it is obligated to pay by virtue of
the provisions of this Agreement on the date determined for such payment,
then in such case, the breaching party will be obligated to pay the other
party arrears interest, with the addition of due V.A.T for the amount in
arrears, according to the rate customary at the time by Bank Leumi of
Israel Ltd. in case of deviating from an approved credit limit in a US
Dollar loan accounts, without undermining from any right or remedy awarded
to the Seller by virtue of the provisions of this Agreement or the
provisions of the law.
21. JOINT STIPULATION
The Seller's obligations to transfer the Sale Shares to the Buyer on the
Closing Date and the Buyer's obligations to pay the Seller the
Consideration for the Sale Shares are considered joints stipulations as
defined by the law. This provision will also apply, with the required
modifications, to the Option Shares and exercising thereof.
22. AMENDMENTS AND WAIVERS
22.1 Any change or amendment to this Agreement will be done in writing and
signed by the parties thereto.
22.2 Not to undermine from the said in this Agreement, in any case that a
party to this Agreement will not demand the execution of the Agreement
or any part thereof, this will not be considered as waiving his right
to do so and any waiver of a breach of any provision of the provisions
of this Agreement, will not be considered as an continuing waiver of
the breach.
23. LACK OF RIGHTS TO A THIRD PARTY
This Agreement does not award and the parties thereto do not intend to
award rights to any third party.
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24. MAINTAINING CONFIDENTIALITY
The parties declare and mutually undertake, that as of the date of signing
this Agreement, they will maintain complete confidentiality and will not
make any use intended for themselves or others, will not tell, reveal or
publish in any other way, information or knowledge associated, directly or
indirectly, to the business and/or activity of each party and any
information connected thereto and/or business connected to any of the
parties in any manner. Not to undermine from the generality of the said,
the Seller undertakes to maintain complete confidentiality and not to make
any use of business, economic, commercial or other information that came to
its knowledge and/or possession during or as a result of the negotiations
and/or business and will maintain complete confidentiality regarding the
activity and business of each party and its interests, in all fields of
activity, including the provisions of the transaction. In addition, the
parties undertake to maintain complete confidentiality and not make any use
of information as said, regarding the Company.
The aforesaid will not apply to information that the Buyer is obligated to
publish as a public company, according to the law, including the Securities
Act and the provisions installed according thereto, provided that any
exposure or publication of information as said, will be arranged in advance
in writing with the Seller.
25. NOTICES
25.1 All notices that should be given according to the provisions of this
Agreement will be in writing and sent to the addresses indicated in
the preamble to this Agreement or other address informed in writing by
one party to the other.
25.2 All notices will be sent by messenger, registered mail or facsimile.
Notice sent by registered mail will be considered as received within
seven (7) days from dispatch thereof, notice sent by messenger or
facsimile, will be considered as received one business day after
dispatch thereof.
IN WITNESS THEREOF THE PARTIES HAVE HEREUNTO SIGNED IN THE PLACE AND
DATE INDICATED ABOVE:
SIGNED: Signed with stamp:
BENTAL INVESTMENTS COOPERATIVE AGRICULTURAL SOCIETY LTD.
--------------------------------------------------------
TAT TECHNOLOGIES LTD. BENTAL INVESTMENTS COOPERATIVE AGRICULTURAL SOCIETY
LTD.
By: DOV TSEELIM By: SHAUL GOR
----------- -------------
Yisrael Ofan Shafrir (Shafi) Mor
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